Zimmerman v. Holling CA2/6

Filed 8/24/20 Zimmerman v. Holling CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion
has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
LYNN BEHRENS 2d Civil No. B294254
ZIMMERMAN, (Super. Ct. No. 18CV01746)
(Santa Barbara County)
Plaintiff and Respondent,
v.
BILL HOLLING et al.,
Defendants and Appellants.
Bill Holling and RE/Max Gold Coast Realtors
(collectively RE/Max defendants) appeal the trial court’s order
denying their anti-strategic lawsuit against public participation
(anti-SLAPP) motion. (Code Civ. Proc.,1 § 425.16.) We affirm.
FACTUAL AND PROCEDURAL HISTORY
Lynn Behrens Zimmerman brought a lawsuit against
several defendants including Wells Fargo, N.A. and RE/Max
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Further unspecified statutory references are to the Code
of Civil Procedure.
defendants. The gravamen of Zimmerman’s complaint was the
wrongful foreclosure of her property. She alleged the following
causes of action: (1) violation of the Garn-St. Germain
Act/RESPA; (2) breach of contract; (3) violation of FDCPA (15
U.S.C. § 1692f(6)); (4) wrongful foreclosure; (5) violation of the
California Home Owner’s Bill of Rights; (6) violation of Civil Code
section 2934a; (7) cancellation of instruments; (8) false
promises/fraud; (9) violation of the Unfair Competition Law; (10)
false promises/fraud; and (11) intentional infliction of emotional
distress. She alleged the third through ninth causes of action, all
of which relate to wrongful foreclosure, “[a]gainst all defendants.”
She did not specify the defendants for the other causes of action.
(See Cal. Rules of Court, rule 2.112 [“each separately stated
cause of action . . . must specifically state . . . [¶] . . . (4) The party
or parties to whom it is directed”].)
With respect to the RE/Max defendants, Zimmerman
alleged that Holling “accompanied by two off duty sheriffs hired
by him dressed to appear to be on duty . . . threatened, and
intimidated [her] and gave her five minutes to get her dogs, her
medicine and get out . . . [even though], there was no sheriff’s
order to remove her.” She alleges a RE/Max agent “delivered a
dumpster” and hired two men to “throw everything they didn’t
take themselves, (washer and drier [sic], refrigerator, four TVs,
furniture hundreds of possession. 50k in stolen [items)].”
RE/Max defendants filed an anti-SLAPP motion to
strike them from the complaint. They argued the only claims
Zimmerman alleged against them were necessarily based on
protected activity, i.e., enforcing the unlawful detainer judgment.
The trial court denied the anti-SLAPP motion,
finding the RE/Max defendants did not meet its burden to
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identify “all allegations of protected activity” in Zimmerman’s
complaint. The court noted that the “principal dispute” arose out
of a foreclosure action between Wells Fargo and Zimmerman and
“the only acts alleged by [Zimmerman] regarding conduct of
moving parties occurred in 2016—long after the loan servicing
and foreclosure.” The court said it had “no factual basis to
analyze the extent, if any, that the conduct of the moving parties
arises out of protected activity under wrongful foreclosure or
illegal lending practices theory.” The court concluded that
because RE/Max defendants “did not identify specific allegations
that they seek to strike from the complaint,” the anti-SLAPP
motion must be denied.
DISCUSSION
An order granting or denying an anti-SLAPP motion
is appealable pursuant to sections 425.16, subdivision (i) and
904.1, subdivision (a)(13). We review the order de novo, applying
a two-prong inquiry. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
Under the first prong, the RE/Max defendants must show
Zimmerman’s cause of action “aris[es] from any act . . . in
furtherance of [their] right of petition or free speech.” (§ 425.16,
subd. (b)(1).) Under the second prong, Zimmerman must
“establish[] that there is a probability that [she] will prevail on
[her] claim.” (Ibid.)
RE/Max defendants contend the trial court erred
when it found they did not carry their burden to meet the first
prong of the anti-SLAPP inquiry. They argue they met their
burden because the only claims Zimmerman alleged against them
necessarily arose from their involvement in the enforcement of
the unlawful detainer action. They argue that this is enough to
establish that the claims against them arose from their
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involvement in protected activity pursuant to section 425.16.
(Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049,
1071.) We disagree.
Medical Marijuana, Inc. v. ProjectCBD.com (2016) 6
Cal.App.5th 602 (Medical Marijuana), is instructive. There, the
plaintiff sued Project CBD and other defendants for several
causes of action, including libel and false light. (Id. at p. 608.)
The complaint contained general factual allegations that Project
CBD published false statements in October 2014. (Id. at pp. 610-
611.) However, the portion of the complaint that specifically
alleged libel and false light limited these causes of action to
different statements published in April and May 2014. (Id. at p.
611.) The Project CBD defendants filed an anti-SLAPP motion to
strike the libel and false light causes of action alleged against
them. (Id. at p. 606.)
The Court of Appeal held the anti-SLAPP motion
should be denied because the Project CBD defendants could not
meet their burden under the first prong of the anti-SLAPP
analysis. (Medical Marijuana, supra, 6 Cal.App.5th at p. 620.)
Only the general factual allegations of the complaint referred to
the Project CBD defendants, but the portions of the complaint
setting forth the specified causes of action did not “allege any
conduct on the part of the Project CBD defendants giving rise to
the claims for liability in the libel and false light counts.” (Id. at
pp. 616-618, 620.) Thus, there was “no activity on the part of the
Project CBD defendants, let alone activity that amounts to
‘protected speech or petitioning.’ [Citation.]” (Id. at p. 620.) The
court stated it could not “engage in what would amount to
redrafting of the [complaint] in order to read that document as
alleging conduct that supports a claim that has not in fact been
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specifically alleged, and then assess whether the pleading that
we have essentially drafted could survive the anti-SLAPP motion
directed at it.” (Id. at p. 621.)
Here, the general factual allegations in the complaint
refer to the RE/Max defendants’ conduct in the course of the
eviction, the RE/Max defendants do not identify any cause of
action against them arising out of their involvement in the case.
RE/Max defendants argue that this is so because all of the causes
of action “centers around the wrongful foreclosure by Wells
Fargo,” which occurred prior to their involvement. Where “the
operative complaint alleges no act on the part of the moving
defendants in support of the claim or claims for relief that those
defendants seek to strike from the complaint, the defendants are
not entitled to strike those claims for relief pursuant to the anti-
SLAPP statute, although they may have other remedies available
to them to address deficiencies in the pleading.” (Medical
Marijuana, supra, 6 Cal.App.5th at p. 621.) Because RE/Max
defendants do not meet their burden to identify any protected
activity that forms the basis of the causes of action alleged
against them, the anti-SLAPP motion was properly denied.
DISPOSITION
The order is affirmed. Zimmerman shall recover
costs on appeal.
NOT TO BE PUBLISHED.
TANGEMAN, J.
We concur:
GILBERT, P. J.
PERREN, J.
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Donna D. Geck, Judge
Superior Court County of Santa Barbara
______________________________
Manning & Kass, Ellrod, Ramirez, Trester, Fredric
W. Trester, Jamileh Hawatmeh and Jeffrey Tsao, for Defendants
and Appellants.
Law Office of Richard L. Antognini and Richard L.
Antognini, for Plaintiff and Respondent.